SCFF Blog

Aileen McHarg: Indyref2: Who Decides?

Posted on March 15 2017

The early months of the 2014 independence referendum were dominated by process issues: who got to decide whether – and if so, on what terms – a referendum would take place? Following Nicola Sturgeon’s call on Monday for a second independence referendum, it looks like process issues will be equally problematic this time around. Disputes over process are attributable to that fact that, while an accommodation was reached last time (via the October 2012 Edinburgh Agreement and subsequent section 30 order) to enable the Scottish Parliament to enact legally-watertight referendum legislation, the underlying legal and constitutional issues were left unresolved.

There are two – linked, but nevertheless distinct – issues which need to be addressed in determining ‘who decides’ in relation to indyref2:

Who has the legal power to authorise an independence referendum?

Do the Scots have a constitutional right to secede?

Both issues are characterised by considerable uncertainty and hence potential for dispute.

The Legal Question

In her speech on Monday, the First Minister said that she intends ‘to seek the authority of the Scottish Parliament to agree with the UK Government the details of a section 30 order’ to enable the Scottish Parliament to legislate for another independence referendum. Since the SNP and Scottish Greens between them form a pro-independence majority in Holyrood, such authority is certain to be given.

The decision to request a section 30 order reflects the process agreed in the 2012 Edinburgh Agreement. A section 30 order allows an adjustment to be made to the list of reserved matters in the Scotland Act 1998, with the agreement of both Houses of the UK Parliament and the Scottish Parliament, in this case to make it clear that legislation authorising an independence referendum is not a reserved matter. From the point of view of the Scottish Government, the advantage of a section 30 order is that it would put the legality of a referendum Bill beyond doubt. The disadvantage is that the UK Government may refuse to grant such an order, or agree to do so only subject to conditions. The key conditions agreed in 2012 were (1) that there should only be a single question on the referendum ballot paper giving a choice between independence and the status quo (and therefore no second question on further devolution) and (2) that the referendum should be held before the end of 2014. The latter condition means that the agreement reached in 2012 was temporary, and there is therefore currently no express power in the Scotland Act to authorise a second referendum. Attempts during debates on what became the Scotland Act 2016 to confer permanent power to authorise another independence referendum were rejected.

Is there, however, an implicit power in the Scotland Act to enact a referendum Bill irrespective of a second section 30 order? There was a lively debate in the early months of 2012 (see, for example, here and here) as to whether a referendum Bill would be lawful in the absence of an express amendment of the Scotland Act. After all, the Scottish Parliament’s competences do not depend on positive conferral of power to legislate on particular topics, but rather on the absence of relevant restrictions on its powers. While there is currently no express permission in the Scotland Act to hold an independence referendum neither is there any explicit prohibition. However, the ‘Union’ is a matter reserved to the UK Parliament. This clearly means that the Scottish Parliament could not lawfully legislate to declare unilateral independence from the United Kingdom. But there were different views on whether it also prohibits the holding of a referendum on independence – a referendum which, as the Supreme Court in the Millercase has recently reminded us, would have no binding legal effects.

This issue was never finally resolved in 2012, and it might be expected that, if the UK Government refuses a section 30 order or proposes conditions which are unpalatable to the Scottish Government, the latter might revive the argument that it made in 2012 that Holyrood has inherent power to authorise a referendum. While the Scottish Government has not explicitly suggested this in relation to indyref2, its October 2016 consultation paper on a draft referendum Bill does appear to leave some wiggle room to argue that a section 30 order is not, after all, essential. Nevertheless, if the Scottish Government is forced to legislate for a referendum without the comfort of a section 30 order, the legality of the legislation is certain to be challenged before the courts. As in 2012, therefore, the legally prudent course of action is to seek another section 30 order.

The Constitutional Question

The legal validity of a second referendum is important, but ultimately not the most crucial question. After all, as the 2014 referendum demonstrated, legal validity can relatively easily be secured if the political will to do so is present. However, whether the vires question proves to be a mere technicality or a fundamental stumbling block to a second referendum depends upon how the underlying constitutional question relating to the right of Scotland to secede from the Union is viewed.

Unlike in some other constitutional orders (Spain being a case in point), it is clear that lawful secession is possible in the UK. The UK Parliament – being sovereign – can clothe any constitutional change with legal validity. But do the Scots have a right to secede, and if so, what conditions if any are there on the exercise of this right? Once again, this fundamental issue was not clearly resolved by the 2014 referendum.

In the debates over the first independence referendum, three distinct constitutional accounts of the right to secede can be discerned, each corresponding to a different understanding of the nature of the UK’s territorial constitution (developed further here):

A ‘unitary state’ account, in effect, asserted that there was no right to secede. On this view, the constitutional right to decide whether an independence referendum should take place rested solely with the UK Parliament, as the unrivalled sovereign authority within the UK constitutional order. This meant that the UK Parliament could legitimately veto a referendum, or permit it subject to whatever conditions it considered appropriate.

A ‘union state’ account asserted that (political) sovereignty lay not with the UK Parliament, but rather with the peoples of the constituent parts of the UK. On this view, the people of Scotland possessed a right to self-determination, and the sole (political) authority (via the Scottish Parliament) to determine when and on what terms an independence referendum should be held.

A ‘quasi-federal’ account recognised the right of the Scottish people to secede, but nevertheless asserted the legitimate constitutional interest of the rest of the UK in how and on what terms secession should take place. On this view, the right to hold a referendum was not a matter within the exclusive competence of either the UK or Scottish Parliaments, but rather an issue for negotiation between them.

None of these constitutional accounts can be regarded as having been unequivocally endorsed – or rejected – by the 2014 referendum process. While the unitary state account appears implausible as an account of the constitutional significance of the 2014 referendum viewed from a political perspective, from a legal perspective it remains incontrovertibly true that the referendum could not have taken place without the legal authority – whether express or implied – conferred by the UK Parliament. The union state account finds plenty of political endorsement in Scotland’s recent constitutional history – from the 1988 Claim of Right, the 1997 devolution referendum, the 2014 independence referendum, and the Smith Commission’s post-referendum endorsement of the ‘sovereign right of the people of Scotland to determine the form of government best suited to their needs’. However, it has received no unequivocal legal endorsement, and as the Miller case has also recently reminded us, constitutional claims which are recognised only politically rather than legally are vulnerable to being overridden or ignored. Arguably, the quasi-federal account best fits the negotiated and conditional agreement that underpinned the 2014 referendum. But a quasi-federal account is hard to reconcile with other aspects of the territorial constitution. The kind of shared approach to constitutional change that it implies has, for instance, been notably absent from the Brexit process – and indeed is the reason why a second independence referendum has been called.

Constitutional Conflict and Constitutional Crisis

The uncertainty surrounding the legal and constitutional right to hold a second independence referendum is a recipe for conflict. The Scottish Government has made clear that it expects a section 30 order to be granted, asserting its mandate to hold a referendum, and that it expects the terms of the referendum to be ‘made in Scotland’. However, the UK Government seems minded not to co-operate, with some urging it to reject a second referendum altogether. Although an outright veto seems unlikely, a conditional agreement could be equally contentious. The UK Government’s response so far suggests that it may seek to impose conditions as to popular support and timing. It has been reported that the Prime Minister is considering making a section 30 order conditional upon the SNP winning a majority at the next Holyrood election, or that a second referendum should take place only once the Brexit negotiations have been completed.

However, in the absence of a clear constitutional understanding of the parameters of Scotland’s right to secede, the constitutional justification for either condition is not clear cut. Why should the holding of a referendum on independence be dependent on the existence of an electoral mandate, and even if it is, why is the current mandate of Holyrood’s pro-independence parties not sufficient? Similarly, why should a referendum predicated on the principle of Scotland being taken out of the EU contrary to the wishes of a majority of its voters be permitted only once Brexit has actually taken place? Both are likely to be perceived as being motivated by tactical rather than principled considerations, the former establishing a procedural hurdle that the SNP is unlikely (given the Holyrood electoral system) to be able to surmount, the latter postponing the independence question until a time more convenient to the UK government. Both risk playing into a narrative of constitutional intransigence of the part of the UK government which is likely to bolster the independence case.

Conclusion

In relation to the 2014 independence referendum, it took months of constitutional shadow-boxing and behind-the-scenes negotiation before agreement was eventually reached between the UK and Scottish governments. The conditions for reaching agreement in 2017 seem even less promising than they did prior to October 2012, given that the constitutional stakes are so much higher on each side. At the same time, though, it won’t be in the interests of either government to let the issue drag on.

Politically, the Scottish Government appears to have the stronger hand, with the precedent of the 2014 referendum and a clear change of circumstances in the form of Brexit to justify a second vote. Moreover a focus on process, and in particular, reinforcement of the message that Scotland is not in control of its own constitutional destiny is likely to benefit the Scottish government’s case for independence – as well as to detract attention from other issues on which it might be more vulnerable. As noted above, if the UK government cannot be persuaded to come to (reasonable) terms the Scottish government also has the option of legislating for a second referendum without a section 30 order and taking its chances before the courts. Underlying all this is the sense that the constitutional mess in which the UK government finds itself is one entirely of its own making. It is difficult to see how placing obstacles in the way of a second independence referendum can do anything other than make things worse.

Aileen McHarg is Professor of Public Law at the University of Strathclyde